Director of Public Prosecutions (NSW) v Louizos

CATCHWORDS: CRIMINAL LAW - jurisdiction, practice and procedure - bail - review of decision granting bail pending appeal - whether exceptional circumstances exist - Bail Act 1978, s 30AA

LEGISLATION CITED: Bail Act 1978 Criminal Appeal Act 1912

Chamberlain v The Queen [1993] HCA 13; (1983) 153 CLR 514 Director of Public Prosecutions v Louizos, [2008] NSWCA 220 CASES CITED: Marotta v R [1999] HCA 4; (1999) 73 ALJR 265 R v Budiman (1997) 97 A Crim R 548 R v MFA [2002] NSWCCA 49

PARTIES: Director of Public Prosecutions (NSW) (Appellant) Freda Louizos (Respondent)

COUNSEL: L Wells (Crown/appellant) J Doris (Respondent)

SOLICITORS: Director of Public Prosecutions Hardinlaw (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2008/40347

McCLELLAN CJ at CL GROVE J SIMPSON J

THURSDAY 23 OCTOBER 2008 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v Freda LOUIZOS Judgment 1 McCLELLAN CJ at CL: This is an application by the Director of Public Prosecutions pursuant to s 48 of the Bail Act 1978, to review the decision of Woods DCJ on 3 October 2008 granting the respondent, Freda Louizos bail following her conviction and sentence for soliciting Chad Williams to murder her former husband Barrie Leslie Bruce. The respondent was originally arrested and charged with the offence on 4 October 2006. 2 The respondent was discharged following a committal hearing but stood trial in the District Court following the filing of an ex officio indictment. She was granted bail before and during the trial. 3 The jury returned a guilty verdict on 25 August 2008. On that day the respondent was granted bail. The Crown sought a review of that decision which was heard by this Court on 9 September 2008 when the application was refused. One of the significant considerations for the Court of Appeal on that occasion was that the respondent was due for sentence on 25 September 2008. The trial judge passed sentence on that day imposing a term of ten years imprisonment with a non-parole period of six years. 4 On 3 October 2008 his Honour granted the respondent bail. It is that decision which is the subject of the application for review before this Court. 5 Both the respondent and the Crown have filed appeals in the Court of Criminal Appeal. The respondent raises two grounds being:

1. Exhibit F ought not to have been admitted as evidence. 2. The verdicts of the jury was unreasonable or cannot be supported having regard to the evidence. 6 The Crown appeals the sentence and will submit that it was manifestly inadequate. 7 Exhibit F is a transcript of telephone conversations with Chad Williams. Two of the conversations are between the respondent and Williams. The other is between Williams and an employee of the respondent. The conversations between Williams and the respondent are capable of being understood as providing considerable support for the Crown case. 8 Woods DCJ granted a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912. Although not contemplated by the section his Honour identified two grounds for his certification being:

1. Exhibit F ought not to have been admitted as evidence. 2. The verdict of the jury was unreasonable or cannot be supported having regard to the evidence. 9 The Crown case at trial was that the respondent had arranged for Chad Williams, who it was said was beholden to her for a job and accommodation, to kill her former husband. It was alleged that Williams persuaded another man, Denning, to carry out the murder. An unsuccessful but severe attack was carried out by Denning with Williams and a third person, Moyes, at the scene. 10 The Crown called Chad Williams who stated that the respondent had enlisted him to kill her husband. He received a discount on his sentence for assistance. He admitted that he had been untruthful and told lies to try and minimise his role in the crime. The telephone intercept evidence was tendered to show that the respondent had urged Williams to deny any knowledge of the crime if questioned by the police. She provided information to Williams about the police investigation and attempted to reassure him. The respondent is recorded as saying to Williams "you keep your mouth shut, no one else will talk." She also says "All I can say to you is, you keep your mouth shut, they have got no DNA, they've got nothing." 11 The Crown evidence suggested that the respondent was the link between Williams and the victim and that by reason of her dispute with her former husband as to the custody of her children she had a motive for the killing. 12 Objection was taken at the trial to the tender of the telephone intercepts. The essence of that objection will be repeated on the appeal. It was submitted that each of them was a contrived conversation because at the time the calls were made Williams was in police custody but hid this fact from the respondent. In the first call Williams speaks with the respondent's employee and asked her to pass on a message to the respondent saying "Lee has rolled on Freda and me." The respondent rang Williams four minutes later. It was submitted by the respondent that in fact Lee Moyes to whom Williams was referring "had not rolled further than repeating Williams' verbal allegation against the appellant in an induced statement." Objection was also taken to the second call and it was submitted that without it the first and third calls could not have been admitted because their relevance could not be established. 13 A significant element of the objection to the telephone calls has to do with the fact that the telephone intercept warrant was allegedly used selectively, some calls not being recorded while others were. It was submitted that in these circumstances the terms of the warrant had not been faithfully complied with because in effect the recordings were edited when the warrant required all calls to be recorded. It was further submitted that the understanding to be gained from the calls was equivocal and the risk that the jury may misuse them meant that their probative value was outweighed by the potential prejudice and they should have been rejected. 14 During the course of the trial the respondent sought a Prasad direction but this was rejected. It will now be submitted on the appeal that the verdict is unreasonable and cannot be supported. The essence of this submission as I understand it, is that Williams was a known criminal informer who admitted to lying and accordingly, without corroboration, his account of the relevant events could not be accepted. It will be submitted that even if the telephone intercept material was correctly admitted it was not corroborative of Williams' account. 15 Section 48 of the Bail Act provides for the review of a decision in relation to bail. This Court has previously said that it is a hearing de novo (see the decision of this Court in relation to the previous application Director of Public Prosecutions v Louizos, [2008] NSWCA 220 at [23]). The Court must nevertheless exercise restraint taking into account the trial judge's advantage in weighing the factors in support of bail: R v Budiman (1997) 97 A Crim R 548 at 549. 16 Before bail can be granted in circumstances where an appeal is pending in the Court of Criminal Appeal it must be "established that special or exceptional circumstances exist justifying the grant of bail" (s 30AA, Bail Act). In R v MFA [2002] NSWCCA 49 this Court had regard to considerations identified by Callinan J in Marotta v R [1999] HCA 4; (1999) 73 ALJR 265. In that decision Callinan J doubted the observation of Brennan J in Chamberlain v The Queen [1993] HCA 13; (1983) 153 CLR 514 at 519-520 to the effect that a verdict of a jury was not to be treated for the purposes of an application for bail as provisional. His Honour said: "With respect, I doubt whether a grant of bail does treat a verdict of guilty as provisional. The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail." 17 Marotta was concerned with an application made to the High Court following a grant of special leave to appeal. However, many of the matters considered by Callinan J are relevant to an application under s 30AA. In both Marotta and MFA it was accepted that it was relevant to the application for bail that the outcome of a successful appeal may be an acquittal. However, as I understand the reasoning, particularly in Marotta, the significance of that possibility increases if there is a close proximity between the likely time for the resolution of the appeal and the end of the sentence which the appellant is serving. Where a successful appeal may result in an acquittal the prospect that the person may nevertheless serve a substantial portion of the sentence imposed may justify a finding of special or exceptional circumstances. The significance of the relationship between the date for the appeal and the conclusion of the sentence will obviously be greater if an appeal is likely to be delayed. 18 It is apparent from the decision in Maroota that the merit of the pleaded ground of appeal will also be relevant. If the court concludes that an appeal is hopeless the court would be less inclined to find special or exceptional circumstances than if the appeal was found on the limited examination available to the relevant court to have good prospects of success. 19 In the present case Woods DCJ identified four matters from which his Honour concluded that there were special or exceptional circumstances. They were the fact that his Honour had granted a certificate under s 5 of the Criminal Appeal Act, uncertainty about the date when the appeal against conviction could be heard, the fact that the respondent had never been in custody before and any period of incarceration would be more damaging than in many other cases and the circumstance that if the appeal succeeds the outcome would be likely to be a quashing of the conviction rather than a retrial. The respondent advanced the same considerations before this Court. 20 In my opinion neither individually nor cumulatively do these matters constitute special or exceptional circumstances within the meaning of s 30AA. It may be accepted that by the grant of a certificate as s 5 requires Woods DCJ was of the opinion that this was a fit case for an appeal. His Honour said that the appeal "does raise a matter of considerable substance." I understand that his Honour had in mind, in particular, the question of the admissibility of the telephone intercepts. However, it must be remembered that his Honour determined that they were admissible. It was the jury who were satisfied of the respondent's guilt. Presumably they came to that conclusion after consideration of both the evidence of Williams and the telephone calls. Although I could not conclude that the appeal is hopeless, the prospects of success do not justify a finding of special or exceptional circumstances. 21 With respect to the hearing date the appeal has been fixed for 11 December 2008. At the time his Honour considered the matter it was believed that there was a prospect that the appeal could not be heard until sometime in the early part of 2009. Where, as in the present case, the term of the non-parole period imposed extends well beyond the date of the likely resolution of the appeal, unless there is likely to be some extraordinary delay, the fact that the appeal cannot be heard in the immediate future could not justify a finding of special or exceptional circumstances. 22 There are many persons who are convicted and sentenced to imprisonment who have never previously been convicted of any offence. That fact could not justify the relevant finding. Although there was evidence before us of the difficulties which the respondent faces and her concerns about the welfare of her three children I am not persuaded that the respondent's circumstances are such that incarceration would be more damaging to her than many other offenders. 23 I have indicated that the possibility that an appeal may lead to an acquittal is a relevant consideration. However, because of the term of the respondent's sentence that consideration is of minor significance in the present case. 24 In my opinion there is nothing in the respondent's circumstances which could justify a finding under s 30AA of the Bail Act. In my opinion the application should be granted and the respondent's bail revoked forthwith. 25 GROVE J: I agree. 26 SIMPSON J: I also agree. 27 McCLELLAN CJ at CL: Accordingly, the orders of the court are the application is granted and the respondent's bail is revoked forthwith. **********

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